HR 1746: The Community Access Preservation Act

Washington, DC - Congresswoman Tammy Baldwin (D-WI) and Congressman Steve LaTourette (R-OH) today introduced the Community Access Preservation (CAP) Act of 2011 (H.R. 1746) to address severe challenges faced by public, educational, and government access (PEG) TV channels and save thousands of jobs across the country.

There are an estimated 5,000 PEG channels in America that serve their communities in a variety of important ways. They connect residents with their local government, televising city council and county board meetings and hearings.

Local school districts operate PEG channels to broadcast school board meetings and forums, homework helpers, lectures, and sporting events not otherwise aired on television. And according to a survey conducted by the National Association of Telecommunications Officers and Advisors (NATOA), religious shows represent 20-40 percent of local access programming.

“Local access channels bring unique voices, perspectives, and programming to television,” said Congresswoman Baldwin. “The nature of television programming is changing, as are the methods in which that programming is delivered. These changes should not come at the expense of the diversity and vibrancy of local voices,”Baldwin said.

"These stations don't receive federal funding. All this bill does is allow and empower local communities to keep their public access channels if they choose to do so. Many communities within the state televise council meetings or local sporting events at area high schools," LaTourette said.

Historically, the number of channels and funding dedicated to PEG TV was negotiated as part of local cable franchise agreements between the cable company and the local community and each community determined its own investment in programming.

However, recent state-level franchise laws in twenty states have jeopardized this balance and communities and consumers in six states, including Wisconsin and Ohio, will lose all funding for PEG channels by 2012. A recent nationwide study conducted for the Benton Foundation by the Alliance for Communications Democracy shows that PEG access centers in at least 100 communities across the U.S. have closed since 2005 and, without passage of the CAP Act, as many as another 400 public access channels will shut down.

By allowing communities more flexibility to use PEG funding for more than “capital costs,” the CAP Act could create or save between 7,000 and 10,000 jobs across the country. The bill specifically:

Allows PEG fees to be used for any PEG-related purpose;
Prevents cable operators from charging for the transmission of the channels;
Requires the FCC to study the effect state video franchise laws have had on PEG channels; and
Requires operators to provide the support required under state laws, or the support historically provided for PEG, or up to 2% of gross revenue, whichever is greater.

“Decisions at the state and federal level have combined to create a crisis for PEG. With the CAP Act, Reps. Baldwin and LaTourette effectively address the most immediate problems and open the door to the future by preserving support for PEG while the FCC conducts its study. This bill is critical to us. Wisconsin’s rich community access heritage is on the line,” said Mary Cardona, Executive Director of the Wisconsin Association of PEG Channels.

“I'm very excited that Congressman LaTourette is co-sponsoring this bill,” said Kathie Pohl, Director of Marketing & Community Relations, City of Mentor, OH. “This benefits the entire community because it will mean that the city, schools and public access centers can continue to be used to inform the general public the way they were intended. But it also relieves a great financial burden on those cities that must pay to have their ‘public’ channels carried on the cable system. This deserves the full support of Congress,” Pohl said.

The legislation, if adopted, would restore PEG funding eliminated by some state laws, allow PEG funding to be used for operating expenses, limit operators from discriminating against PEG channels, and make it clear that any entity that provides video services via facilities in the rights of way is subject to the Cable Act's franchising requirements.

What follows is a short briefing paper on the Act, which we hope you will use to educate your congressional delegation and seek their co-sponsorship of the bill. The language of the bill is posted on http://www.allcommunitymedia.org/

Summary of the Community Access Preservation Act

Public, educational and government ("PEG") channels permit schools, governments, individuals and groups to provide and receive information about local events, emergencies, and issues. The channels encourage creation of local programming by civic groups and non-profits, cover government and school meetings, and promote localism and civic engagement. The CAP Act responds to four immediate threats to PEG and these critical local communications.

1. Ensures Funding and Eliminates Unnecessary Limits on the Use of PEG funds

Issue: Under the Cable Act, a cable operator and a local community may negotiate for PEG support in addition to the franchise fee payments for use of public rights of way. The FCC recently ruled, subject to some important exceptions, that this PEG support may only be used for facilities and equipment, and not for PEG operating expenses.

Effect: Some communities are closing PEG facilities because there are no funds to operate them.

Solution: The bill amends the Act to ensure that PEG fees can be used for any PEG purpose and establishes Cable operator must provide greater of:

2% of gross revenues;
Historical support received (i.e. prior to the state franchise); or
State franchise financial obligations.

2. Discriminatory Treatment of PEG channels.

Issue: The Cable Act provides that PEG channels should be free from cable operator interference and available to all cable subscribers. Accordingly, operators historically have provided local commercial television signals and PEG in the same manner, to all subscribers, and without additional charges. Some operators are now providing PEG channels that are less accessible, lower quality, missing basic functionality and higher priced.

Effect: PEG is less accessible to all subscribers, and the most vulnerable viewers may lose access to basic local information altogether.

Solution: The bill reaffirms that operators must deliver PEG channels to subscribers without additional charges, and without “material degradation and without altering or removing content or data” and such signals shall be viewable “by every subscriber of the cable system without additional service or equipment charges…”.

3. Preservation of PEG Support and Localism

Issue: Federal law envisioned that PEG requirements would be established on a community-by-community basis. Several States, while intending to preserve PEG, adopted statewide video franchising standards without regard to local needs and interests.

Effect: Statewide standards are resulting in widespread elimination of PEG.

Solution: Immediate action is needed to preserve PEG to permit Congress to review the impact of these changes on local programming. The FCC is directed to investigate and to report to Congress on the impact of State video service franchising laws since 2005 on PEG. To ensure PEG is preserved, each cable operator must provide the channels and critical facilities it had been providing historically. Operators must make ongoing PEG support payments equal to the greater of the cash payment required under State law, or the value of the PEG support it historically provided.

4. Definition of Cable System

Issue: Entities that provide video services via wired facilities in the rights of way are intended to be subject to Cable Act rules, regardless of the transmission protocol used to deliver service, but some claim that the law is unclear, creating doubt as to where the rules apply.

Solution: The Act is amended to ensure it is technologically neutral. Providers using wired facilities in the rights of way are treated similarly and are subject to similar PEG requirements.